O'Brien v. HillO'Brien v. Hill
- Reporters:
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- Before:
- Horton
{¶ 1} This motion is before the court upon defendant’s motion for summary judgment filed on July 27, 2010. Plaintiff filed a memorandum contra on August 13, 2010. Defendant filed a reply on August 23, 2010. The motion is considered submitted to the court for decision pursuant to Loc.R. 21.01 and 57.01.
Factual History
{¶ 2} The facts of this case are not in dispute. Defendant, Mark A. Hill, has owned and resided in his home located at 1765 Gerrand Avenue in Columbus, Ohio, since November 21, 1994. From 1994 through 2007, Hill and his ex-spouse were the owners of record. Following his divorce in 2007, Hill became the full owner of record. On October 4, 2005, Hill was convicted of attempted unlawful sexual conduct with a minor. In the early fall of 2006, Metro Early College High School (“MECHS”) opened within 1,000 feet of defendant’s residence.
{¶ 3} The Ohio General Assembly passed
Procedural Considerations
{¶ 4} Summary judgment is proper when the moving party demonstrates that (1) no genuine issues of material fact exist, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion, and that conclusion is adverse to the party against whom the motion *20for summary judgment is made when the evidence is construed in a light most favorable to the nonmoving party.
Application of Law
{¶ 5} The issue before this court is whether the residency restriction in
{¶ 6} The Supreme Court of Ohio has held that
{¶ 7} Regarding the designation of the defendant as a sex offender, the court considered and rejected the argument that past and present verb tenses indicated a clear intent by the General Assembly to have the statute apply retroactively to persons previously designated as sex offenders, on the grounds that a past tense verb was not enough to constitute a clear indication that the statute was intended to apply retroactively. Id. “[Ajmbiguous language is not sufficient to overcome the presumption of prospective application” because “the absence of clear declaration * * * precludes the retrospective application of
*21{¶ 8} Regarding a person’s occupying a residence, the court considered and rejected the argument that the statute was being prospectively applied when the defendant was convicted of a sexual offense prior to the statute’s effective date, yet continued to occupy the residence after the statute’s effective date. Whalen, 2009-Ohio-1807, 2009 WL 1027179, ¶ 12, citing Hyle at ¶ 22. The court reasoned that because the statute’s language operated in the present tense and not the past tense, any notion that the General Assembly intended the statute to apply retroactively was eradicated. Id. Moreover, the court noted that a finding that the General Assembly intended to apply
{¶ 9} Hill contends that
{¶ 10} In addition, when faced with an analogous fact pattern, Ohio courts generally have prohibited the imposition of the residency restriction when the defendant was convicted before the statute’s effective date and/or purchased or occupied his residency prior to the statute’s effective date. In either scenario, the statute has been considered improperly applied retroactively. See Nasal v. Burge, 2d Dist. No. 08-CA-07, 2009-Ohio-1643, 2009 WL 903311; (finding for defendant who had been convicted of a sexual offense before the statute’s effective date, but began occupying his residence after the statute’s effective date, on grounds that the court’s ruling in Hyle was not limited to acts committed or facts in existence before the statute’s effective date); see also Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, affirmed 117 Ohio St.3d 531, 2008-Ohio-1592, 885 N.E.2d 236 (finding for defendant who had owned his home before conviction of a sexual offense and before enactment of
{¶ 11} Furthermore, Hill argues that imposing the residency restriction in this case would not be good law, as there is the possibility of being repeatedly *22uprooted and forced to abandon his home if a school, day-care center, or preschool opens near his residence. This would likely encourage neighbors to force an already established sex-offender resident out of his or her home by establishing a school, day-care center, or preschool on the street. A similar argument was raised in State v. Candela, 11th Dist. No. 2008-A-0068, 2009-Ohio-4096, 2009 WL 2488027, in which the defendant argued that he faced the possibility of being repeatedly uprooted if a school were established near his residence. Id. at ¶ 49. The court applied the holding from Hyle that “[the statute] does not apply to an offender who bought his home and committed his offense before the effective date of the statute.” 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, syllabus. This court observes that although the defendant in Candela raised the argument of being repeatedly uprooted from his residence, he failed to show any actual deprivation of property rights. Without an indication in the record that defendant had purchased the residence prior to the enactment of the statute, the court could not find merit in defendant’s argument. Id. at ¶ 51. As an owner of his home, Hill has fully vested property rights, and any challenges to his residency would subject him to continual involuntary moves that would uproot his residence and cause a substantial deprivation of his property rights.
{¶ 12} Plaintiff contends that
{¶ 13} Hill claims that according to the court’s rationale in Hyle, the application of the residency restriction would constitute an unconstitutional taking of his property because there is an inalienable right to live in your home that is recognized by the United States Constitution. While this court is not opining upon the constitutional issues raised by Hill, courts have recognized that property rights are broader than mere ownership, but encompass a “bundle of ownership rights.” State v. Mutter, 171 Ohio App.3d 563, 2007-Ohio-1052, 871 *23N.E.2d 1264, ¶ 20. In Mutter, the state argued that the fundamental right of property includes only the right of ownership, not the right to occupy residential property. Id., ¶ 17, citing Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115. However, the court rejected the state’s position on grounds that the constitution protects more than a mere right of ownership, but also the right to use and enjoy the land. Mutter at ¶ 20. Other courts have also rejected this narrow interpretation and stated that “[t]he rights related to property, i.e., to acquire, use, enjoy, and dispose of property * * * are among the most revered in our law and traditions.” (Emphasis added.) Norwood at ¶ 34, 38, citing Buchanan v. Warley (1917), 245 U.S. 60, 74, 38 S.Ct. 16, 62 L.Ed. 149. Therefore, this right includes the right to reside in residential property. Mutter at ¶ 17.
{¶ 14} In the case at bar, the parties are in agreement as to the facts. This court finds that there is no genuine issue of material fact; therefore, summary judgment in this case is proper. To enforce the residency restriction imposed by
{¶ 15} Consequently, if a defendant is able to continue to remain in his home when he established his residence after the effective date of the statute, but was convicted before the effective date, then it follows that the residency restriction should not be applied retroactively to a contrary fact pattern. In the current case, Hill purchased his home nine years before the effective date of
{¶ 16} Furthermore, Hill has shown that there would be deprivation of his property rights to his current residence if the residency restriction were applied, leading to the encouragement of neighbors to establish a school, day-care center, or preschool near an offender’s residence. Moreover, even though allowing the residency restriction may not infringe upon Hill’s ownership rights to his residence, it would infringe upon his fundamental right to use and enjoy the property. Application of
So ordered.
Notes
. It is important to note that pursuant to the proposed amendment to